Sunshine Act is mostly cloudy, with a chance of abuse

The Sunshine Act is supposed to illuminate the actions of elected officials and the rationale behind their decisions.

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By CHRISTINA TATU

poconorecord.com

By CHRISTINA TATU

Posted Aug. 3, 2014 at 12:01 AM

By CHRISTINA TATU
Posted Aug. 3, 2014 at 12:01 AM

» Social News

The Sunshine Act is supposed to illuminate the actions of elected officials and the rationale behind their decisions.

Despite the act's intentions, there are still plenty of gray areas.

Take for instance the Pocono Mountain Regional Police Commission, which allegedly violated the Sunshine Act when it held an executive session to discuss implementing bylaws — a topic not allowed for such closed-door discussions, according to state statute.

The statute gives six allowable topics for executive session, including: contracts for a collective bargaining unit, pending or imminent litigation or business that would violate a lawful privilege or disclose confidential information if discussed publicly.

At the time, the commission's attorney, Harry Coleman, said he advised the executive session. Later, commission members Lynn Kelly and Fred Courtright said they had concerns about whether the session was appropriate.

Other instances of Sunshine law violations are even murkier.

In the Stroudsburg Area School District, certain school board members have expressed concerns about "polls" taken prior to regularly scheduled school board meetings.

Such a poll was conducted when the board was trying to decide whether to replace its longtime solicitor Dan Corveleyn.

According to emails obtained by the Pocono Record through a public records request, Stroudsburg School Board President Richard Pierce emailed the board and Superintendent John Toleno on June 10.

In one email, Pierce said all nine board members were in agreement that the school board needed a new, more "aggressive" solicitor.

But not all board members were in agreement with that assertion, and several said they were not privy to the other board members' opinions and reasoning on the matter.

Some board members have said they are in favor of such polls, because it helps determine which items are of importance and deserve a spot on the next meeting's agenda.

"If there are nine school board members, and they are all chatting back-and-forth via email, that may cross the line into agency business, which should only take place in a public meeting," said Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association.

Some courts have said "straw votes" or "polls" among board members are OK, as long as there is a vote in public later, said Kim de Bourbon, Pennsylvania Freedom of Information Coalition Director.

"It's the whole decision-making process that's being kept out of the public eye," she said. "If that's not being held in public, then you don't understand what's going on."

In another instance involving the Pocono Mountain Regional Police Commission, four commission members met for dinner at a restaurant owned by one of them, Moyer's Country Kitchen in Pocono Lake, following a meeting earlier this summer.

One Coolbaugh Township representative alleged the dinner was just one example of other commission members gathering outside of regular meetings and likely discussing public business.

Some commission members defended the outing and others like it, saying it was a regular social event and that commissioners' spouses and children also attended.

They said they do not improperly discuss public business.

Courtright, who was not in attendance at the meal mentioned, said he believes officials should avoid the appearance of impropriety.

"Meeting in restaurants, that's nothing new. In most cases, there's no law saying a quorum can't get together at a local restaurant, they just can't talk about agency business," Melewsky said, adding, "Even if they only talk about sports, for example, it still gives the impression of impropriety."

"We get approximately 2,000 calls per year, and half of them have to do with public access issues and the sunshine law. It's a big problem, and it has been for a while," Melewsky said.

Melewsky said part of the problem is there is no easy way to monitor whether the Sunshine Act is being properly enforced. Part of the reason why violations are so hard to monitor is because it's difficult to launch a formal complaint.

"The Sunshine Act itself isn't too bad, it's just there is absolutely no enforcement," de Bourbon said. "At least with the (Right-to-Know Law) you have the Office of Open Records you can appeal to."

There's a formal appeals process that can be followed on the office's website if a person disagrees with an agency's decision not to release public records.

There's no such process with the Sunshine Act, however.

"If you don't like the fact your board is always going into executive session for no good reason, you can't do anything about it except file a complaint in court," de Bourbon said. "You would have to hire a lawyer and go to court."

One area where the act is lacking is in its regard to executive session use, Melewsky said.

Under the current act, although public officials are required to announce the reason why they held an executive session, they are not required to keep notes or a recording of what was discussed during the session.

"One of the biggest changes (to the act) we think is necessary is to deal with the fact that executive sessions are overused, and there is no recording made," Melewsky said.

"When you find yourself challenging an agency's use of an executive session, and there is no record of what was discussed, it makes it difficult. We don't know if what they are talking about during the session is actually appropriate, because there is no record of it."

In addition, there aren't any real penalties for agencies that violate the Sunshine Act.

If a public board does violate the law, for example, by inappropriately going into executive session, there is a court-created remedy called a "cure," Melewsky explained. It's basically a "do-over."

"This means (public officials) can discuss and decide matters in private, in violation of the act, and as long as they 'redo' their vote in public, their decision can stand. But this misses the whole point of the Sunshine Act," says the Pennsylvania News Media Association on its website.

A better understanding of the law would help, said de Bourbon.

When public officials are elected, they usually receive some sort of training in the Sunshine Act, but that's not a mandatory requirement, she said.

"With the Sunshine Act, clearly there needs to be a better arbitration for it. Like we have the Office of Open Public Records, we need someone looking into executive sessions making sure public officials are only meeting in private for really good reasons," de Bourbon said. "Most people would rather it be a simple form you fill out that says, 'I think this board is meeting in executive session for not following the Sunshine Act,' but you literally have to hire an attorney and go to the court. There is no form or guidance."